The Colorado Fetal Personhood Initiative, also known as Initiative 62, was on the 2010 ballot in Colorado as an initiated constitutional amendment, where it was defeated.[1] The measure would have applied the term "person" in Colorado constitutional provisions relating to inalienable rights, equality of justice and due process of law to human beings from the beginning of the biological development of that human being.[2]

Text of measure

Shall there be an amendment to the Colorado constitution applying the term "person," as used in those provisions of the Colorado constitution relating to inalienable rights, equality of justice, and due process of law, to every human being from the beginning of the biological development of that human being?[5]

”

Constitutional changes

Section 32. Person defined. As used in sections 3, 6, and 25 of Article II of the state constitution, the term "person" shall apply to every human being from the beginning of the biological development of that human being.

Background

The 2010 measure was the second time Colorado voters saw an abortion-related measure on the statewide ballot; the first being in 2008. Amendment 48 appeared on the 2008 ballot as an initiated constitutional amendment. The measure was defeated 73% to 27%.

2008 proposal vs. 2010

The 2008 version defined a person as "any human being from the moment of fertilization," whereas the 2010 version defined a person as "every human being from the beginning of the biological development of that human being."[7][8]

The 2010 proposed amendment did not include the word "fertilization" in it.[6]

According to Gualberto Garcia Jones, Colorado Personhood director and proponent of the initiative, the change in language was made in order to be more "comprehensive in our definition of a person." For example, Jones noted that the new language accounted for human beings created through asexual reproduction in laboratories. "Fertilization would not have properly applied to asexually reproduced humans, but even asexually reproduced human beings have a definite biological beginning," said Jones.[9]

Having spokespeople for the 2010 proposed amendment were veterans of the anti-abortion/pro-life movement with more experience than Kristi Burton, who ran the 2008 effort.

Donors

The Personhood Colorado Campaign filed three waivers from Colorado's major donor requirements. If the secretary of state denied the waivers, the campaign faced up to $3,400 in fines for reports they failed to submit.[11] As of August 14, 2010 the Colorado Secretary of State had not issued any official discipline towards Personhood Colorado on the major donor disclosure reports.[12]

Campaign advertising

In late July 2010, Personhood Colorado unveiled a radio ad. According to reports, the radio ad compared the rights of fetuses to American slaves. A fictitious slave named George Stevens said, "I fought so all slaves would be recognized as persons, not property, and we won. But today in Colorado there are sill people called property Ń children Ń just like I was. And that America you thought you wouldn’t recognize is all around you, and these children are being killed. I fought so all slaves would be recognized as persons, not property, and we won." The ad asked voters to vote "yes" because the measure said that unborn children were persons and not property. The ad concluded with, "And that’s the America I fought for."[13]

Criticism

In mid-August a RHRealityCheck.org article appeared on FireDogLake.com'sThe Seminal arguing that the released radio ad "is laughable and it fails to explain Amendment 62 to an electorate that already rejected fetal 'personhood' in 2008." The article, written by Pamela Merritt for RH Reality Check, went on to state that the radio ad not only compared the rights of fetuses to American slaves but "promote a 'documentary' that makes the charge that the most dangerous place for a Black baby is in a Black woman’s womb, they are attacking Black women’s capacity to parent and make health care decisions."[14]

On July 16, Pastor Walter Hoye, Founder and President of Issues4Life, sponsor of the recent California Human Life ballot initiative, initiated a statewide tour in Colorado in favor of Amendment 62. According to reports, the tour focused on both Catholic and Protestant churches. "Passing Amendment 62 this November not only reflects what the Pro-Life movement will look like victorious, it sends a very clear message: 'Persons are not property.' Vote YES for Amendment 62," said Pastor Hoye.[18]

Opposition

In late April 2010 Protect Families Protect Choices announced they launched an "aggressive" campaign against Amendment 62. The campaign pointed to the results of a 2008 ballot question that was rejected by an estimated 1.7 million voters. Jeremy Shaver, executive director of the Interfaith Alliance of Colorado, said, "In 2008, voters learned that the 'definition of a person' amendment was an overt attempt to insert religion into law. We will fight once again to make sure Coloradans know the truth about Amendment 62."[19]

Monica McCafferty of Planned Parenthood of the Rocky Mountains said, "The new initiative has the same goal as Amendment 48, to ban all abortion even in the cases of rape, incest, or when the life of the woman is in danger."[9]

Following the launch of the opposition campaign, Durgin said, "Amendment 62 is bad policy, bad law and bad medicine. It was a bad idea in 2008 and it is still a bad idea now. Amendment 62 would insert the government into the personal, private health care decisions that women and their families make every single day."[20]

The Coalition for Secular Government argued that "personhood" would have been dangerous to women and their doctors, conflicted with an objective theory of rights in pregnancy, and violated the separation of church and state. Ari Armstrong and Dr. Diana Hsieh wrote, "Amendment 62 rests on the absurd premise that a newly fertilized zygote is a full human person with an absolute right to biological life-support from a woman--regardless of her wishes and whatever the cost to her. The biological facts of pregnancy, in conjunction with an objective theory of rights, support a different view, namely that personhood and rights begin at birth. Colorado law should reflect those facts, not the Bible verses so often quoted (and creatively interpreted) by advocates of Amendment 62 ..."[21]

Steven Ertelt, founder and editor of LifeNews.com, a Christian anti-abortion news site, wrote in a December 21, 2010, article on RedState.com that, "In order to defeat Obama and ultimately stop abortions, personhood amendments must be put aside in 2012 so the pro-life community can focus on the number one goal: installing a pro-life president who will put the nation in a position to legally protect unborn children. ... Without putting amendments aside and putting the focus on the 2012 elections, abortion on demand could remain in place for another 37 years."[22]

Donors

Tactics and strategies

On August 31 opponents kicked off their campaign at the Colorado state capitol. Opponents chanted "no on 62," among other things. The rally was attended by Vicky Cowart, president of the Planned Parenthood of the Rocky Mountains. Cowart said, "Amendment 62 is dangerous. It eliminates a woman's right to make personal, private decisions about her body and her health, and it invites politicians, lawyers, and the courts into the relationship between a woman and her doctor."[24] However, according to reports, on the very same day proponents also met at the capitol to voice their opinions on Amendment 62.[25][26][27]

Controversies

According to reports, supporters argued that opponents exaggerated the consequences of the proposed amendment. Opponents said the measure would change about 20,000 Colorado statutes and prohibit abortions in all cases regardless of the health of the mother, rape or incest. They also said that it would end scientific studies and industries. Additionally, they noted that women may lose various forms of birth control and become partially liable for complications during pregnancy. These claims, said Personhood Colorado Director Gualberto Garcia Jones, were exaggerated. According to Jones the amendment would have had an impact on reproductive health but not to the extent that opponents had stated. Jones said the measure would have included "eliminating abortion, ending stem cell research and greatly changing the method by which in vitro fertilization is conducted."[28]

Media editorial positions

Opposition

ColoradoBallot.net, a local blog, was opposed to Amendment 62. The blog stated, in part, "This is a question that does belong on the ballot (one of the few). But I think this is way more extreme than what the people of this state want. We should have a discussion of what point in the pregnancy we as a people want to say abortion is no longer allowed. And we should put it to a vote. But this proposal should be shot down."[29]

TimesCall.com was opposed to Amendment 62. In an editorial, the board said, "Two years ago, 73 percent of Colorado voters rejected the personhood amendment. This is essentially the same amendment. While the amendment’s sponsors are sincere, voters have already spoken. Vote against."[30]

The Denver Post was opposed to Amendment 62. In an editorial, the board said, "Obviously, the intent of the law is to defeat the U.S. Supreme Court's 1973 Roe vs. Wade decision, which defined a fetus as a person once it entered a pregnancy's third trimester. That definition prevents states from arguing that the 14th Amendment to the U.S. Constitution allows them to outlaw abortion. Again, reasonable people can disagree on the merits of abortion. But the "personhood" amendment's attempt to end the established practices under Roe vs. Wade would usher in far too many unintended consequences. Vote "no" on Amendment 62.[31]

The Steamboat Today was opposed to all constitutional amendments on the Colorado 2010 ballot. "After careful consideration of the nine statewide ballot questions being put before voters this fall, we once again have reached the conclusion that proposed amendments to Colorado’s constitution too often are being used to effect changes in public policy that are better left to the legislative branch and the courts," said the editorial board.[32]

The Coloradoan was opposed to the proposed measure. "As we said in 2008 when we recommended a vote against that year's proposal, regardless of how one feels about the issue of abortion, this proposal would carry broad and perhaps unintended consequences if approved by voters. Vote "no" on Amendment 62," said the editorial board.[33]

The Durango Herald was opposed. "A badly written assault on women's reproductive freedom, the "personhood" amendment would end all abortions - even in cases of rape, incest or to save the mother's life. What else it might do would be decided by endless court cases," said the editorial board.[34]

Polls

An October 19-21, 2010 poll by SurveyUSA for the Denver Post and 9-News revealed that 20% of polled voters supported Amendment 62, while 56% were opposed and 25% were undecided. According to reports, the poll had a margin of error of 4.2-4.3 percent. A total of 540 voters were polled.[35][36]

Legend

Position is ahead and at or over 50% Position is ahead or tied, but under 50%

Date of Poll

Pollster

In favor

Opposed

Undecided

Number polled

Oct. 19-21, 2010

SurveyUSA

20%

56%

25%

540

Lawsuit against Colorado's Blue Book

On September 21, 2010 Amendment 62 supporters filed a lawsuit against the Colorado Legislative Council to stop distribution of the 2010 State Voter Guide, also known as The Blue Book. Supporters argued that the Blue Book mislead voters and misstated facts about the measure. According to reports, the voter guide was available online for several days prior to the lawsuit and an estimated 1.8 million copies had been sent to voters in the state. The legislative council met on September 1 to discuss and approve the final wording for the pamphlet but according to supporters, they did not see the wording until September 20.[37][38]

Specifically supporters complained that none of the submitted arguments were used in the guide and several erroneous statements were made. Some of the falsehoods that supporters pointed to, included: statements from opponents that women would be denied health care for certain emergency procedures including miscarriages; statements that doctors and nurses could be subjected to legal action; and the statement that the "beginning of the biological development" was "not an accepted medical or scientific term." The lawsuit alleged that the Legislative Council was biased. "This has the result that the ballot information booklet is, in effect, one big argument against Amendment 62," stated the lawsuit.[39]

Challenge dismissed

On September 30, 2010 Denver District Judge Robert Hyatt dismissed the filed lawsuit. Judge Hyatt agreed with the Legislative Council attorneys that the courts did not have a say in the matter. According to reports, the attorneys had argued that the writing of the Blue Book is a legislative function. Additionally, Judge Hyatt concluded that it was simply too late to make any changes to the state's voters guide. "Everyone in this room has probably received their Blue Book. This court is in no position to wander around the state picking them up," said Hyatt.[40][41]

Measure supporters said they were likely to file an appeal. Gualberto Garcia-Jones, director of Personhood Colorado, one of the groups backing Amendment 62, said, "I think it is apparent that the court believes there is no authority over the Colorado Legislative Council, and that is scary. The Colorado Legislative Council can print anything they want to based on their own prejudices, and my tax dollars have to pay for it."[42][43]

On October 12 Amendment 62 supporters announced that they planed to file an appeal against the dismissal of a challenge against the state's voter guide.[44]

Path to the ballot

A ballot title for the measure was approved on August 5, 2009.[45] Supporters were required to submit 76,047 valid signatures to qualify the measure for the November 2010 ballot by February 12, 2010. The previously stated deadline for signature submissions was February 15, however, on January 22 the Colorado Secretary of State's office said it had made a mistake and the deadline was actually 3 days earlier. Gualberto Garcia Jones, director of Personhood Colorado, said, "We're upset by it. That last weekend is critical."[46]
On March 26, 2010 the Colorado Secretary of State certified the proposed amendment after determining that supporters had collected a total of 95,884 valid signatures, surpassing the minimum requirement of 76,047 signatures.[47][48]

Signature summary

1st attempt:

Number of submitted signatures (1st attempt): 79,648

Valid signatures (1st attempt): 60,357

2nd attempt:

Number of additional submitted signatures (2nd attempt): 47,114

Valid signatures (2nd attempt): 35,527

Total statistics:

Minimum number of required signatures: 76,047

Total submitted signatures: 126,762

Total number of valid signatures: 95,884

Submitted signatures

Approximately 79,817 signatures were submitted in mid-February, 3,770 more than the required number of valid signatures to certify the measure for the ballot.[49][50][51] On March 3, the Colorado Secretary of State announced that filed petitions fell short of the required 76,047 signatures. Supporters had until March 18 to collect additional signatures.[52] A random sample of 5 percent of the submitted signatures revealed 960 invalid signatures; thus according to the secretary of state's office only 60,357 were valid signatures.[53][54]

On March 18, 2010 supporters filed an additional 46,671 signatures with the secretary of state's office. A minimum of 15,690 were required to meet the number of valid signatures required to qualify the measure for the ballot.[55]

Petition requirement lawsuit

On March 18, 2010, in addition to submitting additional signatures, personhood supporters announced they planed to file a lawsuit against a state petition requirement adopted in 2009. Specifically, the lawsuit challenged the requirement that petition circulators had to provide an acceptable form of identification to notary publics. This requirement, according to supporters, is what led to signatures being marked invalid after the first signature submission.[58]

According to reports, in the notary section of the affidavit - "Evidence used to establish ID" - many notaries wrote, "I've known the circulator for 30 years." According to Gualberto Garcia Jones, initiative co-sponsor, the need for a form of identification, such as a driver's license, was never made clear to circulators. The secretary of state's office argued that the petition circulator training guides had been available since July 2009.

The guide stated: "To complete the affidavit, provide your printed name and residential street address. Additionally, you must present an acceptable form of identification to the notary public."[59]

Keith Mason of Personhood USA said, "The current instruction booklet for notaries says 'personal knowledge' is acceptable." According to reports, Mason argued that state officials were also unaware of the new law.[60]